AYODELE ESEZOBOR v. MRS. SUBULOLA SAID
(2018)LCN/12431(CA)
In The Court of Appeal of Nigeria
On Friday, the 25th day of May, 2018
CA/L/639/2009
RATIO
EVIDENCE: CERTIFIED TRUE COPY
“Certified true copy of a public document can be tendered from the Bar without formally tendering it through a witness vide Agagu v. Dawodu (1990) 7 NWLR (pt.160) 56, Anatogu v. Iweka II (1995) 9 S.C.N.J. 1, Progressive Action Congress v. INEC (2009) All FWLR (pt.478) 260, Magaji v. The Nigerian Army (2005) All FWLR (pt.257) 1511 at 1531, Aregbesola v. Oyinlola (2009) All FWLR (pt.472) 1147 at 1181, Our Line Limited v. S.C.C. Nigeria Limited (2009) All FWLR (pt.498) 210. Once so tendered and admitted in evidence the Court must then scrutinise it in considering the matter before it as proof it can be waived vide Our Line Limited v. S.C.C. Nigeria Limited (supra) at 251 per the judgment prepared by Chukwuma-Eneh, J.S.C. It follows that cross-examination on such a public document so admitted in evidence from the Bar would not arise.” PER JOSEPH SHAGBAOR IKYEGH, J.C.A.
Before Their Lordships
JOSEPH SHAGBAOR IKYEGHJustice of The Court of Appeal of Nigeria
YARGATA BYENCHIT NIMPARJustice of The Court of Appeal of Nigeria
UGOCHUKWU ANTHONY OGAKWUJustice of The Court of Appeal of Nigeria
Between
AYODELE ESEZOBORAppellant(s)
AND
MRS. SUBULOLA SAIDRespondent(s)
JOSEPH SHAGBAOR IKYEGH, J.C.A. (Delivering the Leading Judgment):
The appeal is from a ruling of the High Court of Justice of Lagos State (the Court below) whereby it rejected in evidence a letter addressed by the Registrar of Titles to the appellant’s late father which was tendered from the Bar.
Sketchily stated, the tussle between the appellant and the respondent concerns a plot of land located at No. 71/73 Old Yaba Road, Ebute Metta Lagos. In the course of the protracted dispute, the parties gave evidence and closed their respective cases before the appellant discovered a letter from the Registrar of Titles to his late father after the case was adjourned for the adoption of final written addresses. The appellant then filed a motion on notice praying for leave to tender the letter from the Bar. The Court below heard the application and ruled that the fact that the letter is a public document does not entitle it to be tendered from the Bar; upon which the Court below rejected the letter in evidence; hence the appeal.
Relying on Section 109 of the Evidence Act 1990 and the cases of Isibor v. State (1970) All NLR 253 at 257, Ogbunyiya and Ors. v. Okudo and Ors. (1979) All NLR 105 at 106 – 107, 112, 113 – 115, Savannah Bank Ltd. v. Starite Industries Overseas Corporation (2009) 2 – 3 S.C. (pt. 11) 172, Murh Nirchandani Tiptop Industries v. Pinheiro (2001) 3 NWLR (pt. 701) 557, Adeleke v. Oyo State House of Assembly (2006) 10 NWLR (pt. 987) 50, Order 15 Rule 2 of the High Court of Lagos State (Civil Procedure) Rules 2004, the appellant contended in the brief of argument that the Court below should have allowed the document to be tendered from the Bar as it was material to the case and served the ends of justice; consequently, it was urged that the rejection of the letter in evidence breached the appellant’s right to fair hearing; therefore the appeal shall be allowed and the decision of the Court below set aside and the case remitted to another learned Judge of the Court below for determination.
The respondent’s brief of argument filed on 02-11-10 raised preliminary objection that none of the grounds of appeal contained in the notice of appeal filed on 17-07-09 arose from the ruling of the Court below; nor do the grounds of appeal contain particulars of the alleged error in law therefore the notice of appeal is fundamentally defective and incompetent and should be struck out vide Eresia-Eke v. Orikoha (2010) 8 NWLR (pt.1197) 421 at 441, Oba v. Egberongbe (1999) 9 NWLR (pt. 615) 485; and that no issue is formulated from the grounds of appeal contained in the notice of appeal filed on 17-07-09.
The appellant did not reply the arguments on the preliminary objection. The notice of appeal with four grounds of appeal is contained in pages 64 – 65 of the record which, for convenience, I copy below :
1. The learned trial Judge erred in law when she ruled that the public document ‘a letter from the Registrar of Titles dated 8th March, 1967’ under S109 of the Evidence Act must be tendered only through a witness in the box on oath and never from the Bar so as to give the defendants an opportunity of cross examination.
2. The learned trial Judge erred in law when she ruled that tendering the public document from the Bar contravenes the defendants constitutional rights of fair hearing and the doctrine of audi alteram partem.
3. The learned trial Judge erred in law when she ruled that tendering the public document at a time when written addresses had been filed is to spring a surprise on the defendants therefore it is too late to be accepted and admitted as part of Exhibit ‘A’ as evidence in the proceedings.
4. The learned trial Judge erred in law when she ruled that two Supreme Court judgments on the question of tendering public documents from the Bar are irrelevant in this matter thus undermining the authority of that Court.”
The complaint in the grounds of appeal (supra) do not leave in doubt the grievance conveyed by each of the grounds of appeal and thus affords the respondent the avenue to know in advance the case to meet in the appeal.
The said grounds of appeal which have the complaint clearly and succinctly embedded or incorporated in them to the effect that a breach of the right to fair hearing, lapse of time in bringing the application as well as failure to adhere to judicial precedent militated against a grant of the application are therefore competent grounds of appeal vide Badau v. I.N.E.C. (2008) All FWLR (pt.433) 1794 at 1817, Hambe v. Hueze (2001) FWLR (pt. 42) 1 at 6, Ifaramoye v. State (2017) 8 NWLR (pt. 1568) 457, Ngere v, Okuruket ?XIV? (2017) 5 NWLR (pt.1559) 440, Ameen v. Amao (2013) 9 NWLR (pt. 1358) 159, Best (Nig.) Ltd. v. B. H. (Nig.) Ltd. (2011) 5 NWLR (pt. 1239) 95 at 115, Chiadi v. Aggo (2018) 2 NWLR (pt. 1603) 175. The preliminary objection accordingly lacks merit and is hereby dismissed.
The respondent contended that the letter from the Registrar of Titles could not be admitted in evidence from the Bar as to do so would rob the respondent of the opportunity to cross-examine on it and thus deny her fair hearing vide Alabi v. Alabi (2004) 2 NWLR (pt. 856) 134 at 149; that documents are required to be tendered by a party during examination-in-chief either from the Bar or through a witness depending on the nature of the document and thereafter the opponent may cross-examine the witness; more so by Order 32 Rule 1(1), (2) and (3) of the High Court of Lagos State (Civil Procedure) Rules 2004 (the rules of the Court below) facts are to be proved by written depositions while disputed documents, like the letter in question, are tendered through a witness who shall be liable to cross-examination on the documents, and that since the respondent would not have the opportunity to cross-examine the appellant’s witness on the letter sought to be tendered from the Bar, admitting same in evidence would breach the respondent’s right to fair hearing as guaranteed by Section 36 of the Constitution of the Federal Republic of Nigeria 1999 (1999 Constitution).
The respondent also contended that the letter had been in the room occupied by the appellant for over 19 years but the appellant did not give any reason why he could not tender it in evidence after trial commenced on 10-03-09 and closed on 22-04-09 and date for adoption of final addresses filed on 12-05-09 and 25-06-09, respectively, before the motion to tender the letter from the Bar was filed on 25-06-09, therefore the appellant did not deserve the indulgence sought and the Court below rightly exercised its discretion in refusing the application, especially as the document was not frontloaded as required by the mandatory Order 3 Rule 2 of the rules of the Court below.
The respondent further contended that for waiting for 19 years before seeking to tender the letter in evidence the appellant was indolent and equity does not aid the indolent; therefore the Court below was right in holding that the application was to overreach the respondent and having not been incorporated in the list of witness and/or additional statement on oath, the Court below was right in dismissing the application.
The respondent also contended that Isibor v. State (supra) was on the admissibility of deposition of a witness, while Burnell v. British Transport Commission cited in Ogbunyiya v. Okudo (supra) was on the cross-examination of a witness on a portion of a privileged document in the course of which it was urged that the whole document be admitted in evidence which are distinguishable from the present case; also, Ogbunyiya v. Okudo (supra) was on the admissibility of a Government Gazette from the Bar which was not tendered to prove issues for determination between the parties, therefore it is distinguishable from the present case; accordingly, the respondent urged that the appeal should be dismissed with substantial costs.
The sole issue formulated by the appellant is in page 2 of the appellant’s brief of argument to wit –
?WHETHER THE REGISTRAR OF TITLES LETTER – A PUBLIC DOCUMENT DATED 8TH MARCH, 1967 TO PATRICK EGBADON ESEZOBOR INVITING HIM TO COLLECT HIS LAND CERTIFICATE M02329 CAN BE TENDERED FROM THE BAR.”
The issue (supra) is more or less directed on ground 1 of the notice of appeal. The respondent, however, formulated three issues for determination in page 5 of the brief thus –
1. Whether in the circumstances of this case, the Respondent will have the opportunity of cross examining the Appellant’s witness on the letter dated 8th March, 1967 which was sought to be tendered from the bar at the trial Court.
2. Whether in the circumstances of this case, tendering the letter dated 8th March, 1967 after final addresses had been filed and the case was adjourned for adoption of the addresses was not an attempt to overreach the Respondent especially, when no cogent, compelling and convincing reason was given for not tendering same during the trial.
3. Whether the Supreme Court cases cited by the Appellant at the trial Court are not irrelevant to the facts and circumstances of this case.”
The issues (supra) formulated by the respondent are compendious and flow with the grounds of appeal (supra). I would follow the respondent’s issues in the discussion.
The linchpin of the ruling of the Court below is stated in page 63 of the record thus –
“In this case, the applicant is seeking to tender a document from the bar. When trial had closed and parties have filed their addresses and the case was adjourned for adoption of address.”
He has argued that because it is a public document it can be tendered. The fact that it is a public document does not entitled a party to tender it in such a way that the other party would be denied its privilege and rights dictated by the rules of natural justice and fair trial. The reason given by the applicant for bringing this document at this stage is flimsy and inadequate. The procedure in itself is incompetent, as the applicant failed to file list of additional witnesses or additional statement of oath.
Contrary to the contention of the appellant, the Court below did not hold (supra) that a public document could not be tendered from the Bar.
The trinity reasons the Court below gave in dismissing the application was that allowing the document in evidence from the Bar would deprive the respondent the right to fair hearing or fair trial and run against the tenet of natural justice; that the reason given for bringing the document at the stage of the proceedings was ?flimsy and inadequate?; and that the procedure itself was incompetent in that the appellant failed to file list of additional witnesses or additional statement on oath.
Certified true copy of a public document can be tendered from the Bar without formally tendering it through a witness vide Agagu v. Dawodu (1990) 7 NWLR (pt.160) 56, Anatogu v. Iweka II (1995) 9 S.C.N.J. 1, Progressive Action Congress v. INEC (2009) All FWLR (pt.478) 260, Magaji v. The Nigerian Army (2005) All FWLR (pt.257) 1511 at 1531, Aregbesola v. Oyinlola (2009) All FWLR (pt.472) 1147 at 1181, Our Line Limited v. S.C.C. Nigeria Limited (2009) All FWLR (pt.498) 210. Once so tendered and admitted in evidence the Court must then scrutinise it in considering the matter before it as proof it can be waived vide Our Line Limited v. S.C.C. Nigeria Limited (supra) at 251 per the judgment prepared by Chukwuma-Eneh, J.S.C. It follows that cross-examination on such a public document so admitted in evidence from the Bar would not arise. The Court below was accordingly wrong in holding that because the respondent would be deprived of cross-examination on the document it would not let it in evidence from the Bar.
A time-table may not arbitrarily or rigidly be set for attaining justice. Justice has to be accomplished within a reasonable or moderate time always bearing in mind the right to fair hearing for those engaged in the litigation vide Section 36(1) of the 1999 Constitution. True it took the appellant 19 years to ‘suddenly’ discover the document sought to be tendered from the Bar. The document was discovered two weeks after the respondent served final written address on the appellant on 22-05-09 vide paragraph 4 of the affidavit in support of the motion in page 42 of the record. The motion to have the document tendered from the Bar was filed on 28-05-09 vide page 41 of the record, some six days after the document was discovered showing the interval was not inordinate.
The reason given for the late application to tender the document from the Bar hinged on ?sudden? discovery of it by the appellant. Judgment was yet to be delivered in the case. Had the appellant applied and obtained an order of the Court below to amend the processes in support of his case to include the document it could have been tendered from the Bar and the late application should have been granted on terms as to heavy costs. That was not the case here. The document had no foundation in the papers filed for the action to hold and sustain it.
The Court below made the point aright, in my view, that an additional witness or additional statement on oath should have been filed by the appellant incorporating or listing the document in question. Tendering in evidence a document not made part of the case of any of the parties would tantamount to relying on a material fact not envisaged by the opponent.
It is trite that any material fact not made part of the case even if inadvertently admitted in evidence would be expunged at the judgment stage of the proceedings of the Court of trial or on appeal if the attention of the Court is drawn to it.
Based on the preceding reason, the Court below was right in refusing the application.
In the final analysis, I see no merit in the appeal and hereby dismiss it and affirm the ruling of the Court below refusing the application to have the letter from the Registrar of Titles tendered in evidence from the Bar. The appellant shall pay N100,000 costs to the respondent.
YARGATA BYENCHIT NIMPAR, J.C.A.: I read in draft form the judgment just delivered by my learned brother, Joseph Shagbaor Ikyegh, JCA, I agree wholly with the succinct resolution of the narrow issue presented for determination in this appeal.
A document tendered without tying it to the evidence of a witness amounts to dumping the said document on the Court and it does not matter whether it is a Certified True Copy of a Public document or the original of a private document. It is trite that a witness must have spoken about the document, thus the need for a witness statement on Oath to accompany the document. See LADOJA V AJIMOBI (2016) LPELR-40658 (SC) wherein the apex Court held thus:
“I seek to say that the law is settled on documents tendered in Court which purpose and worth must be demonstrated through a witness. It is settled also that the duty lies on a party who wants to rely on a document in support of his case to produce, tender and link or demonstrate the documents tendered to specific parts of his case. The fact that a document was tendered in the course of proceedings does not relieve a party from satisfying the legal duty placed on him to link his document with his case. See C.P.C V. INEC (2011) 18 NWLR (Pt. 1279) 493 at 546 – 547. The appellant at the trial Tribunal, apart from tendering Exhibits 1 ? 192 through PW1 did not bother to demonstrate the exhibits through any witness. The witness PW1 merely dumped the exhibits on the Tribunal and expecting it to go on a voyage of discovery. It is not the Court’s lot to be saddled with nor can it suo motu assume the partisan responsibility of tying each bundle of such documentary evidence to the appellant’s case to prove the malpractice alleged. It would amount to the Court doing a party’s case which will occasion injustice to the other party. The Court as an arbiter must not get into the arena and engage itself in doing a case for one party to the disadvantage of the other party. The petitioner has the duty to tie the documentary evidence to the facts he pleaded through a witness. Anything short of that would be taken as dumping the evidence (documents) on the Tribunal. Each document has to be related to the case; PW1 did not tie any of the documents, Exhibits 1-192, 201, 203 -2013, to its case. Therefore, the Tribunal cannot be faulted when it rejected the exhibits. The Lower Court also rightly endorsed same. This Court in the case of Omisore V. Aregbesola (2015) 15 NWLR (Pt. 1482) 205 at 323, 332 drove home the point when it held “Documentary evidence, no matter relevance, cannot on its own speak for itself without the aid of an explanation relating its existence.” Per OGUNBIYI, J.S.C
I too therefore, dismiss the appeal for lacking in merit. I abide by all orders made in the lead judgment.
UGOCHUKWU ANTHONY OGAKWU, J.C.A.: I was privileged to have read in draft, the leading judgment of my learned brother, Joseph Shagbaor Ikyegh, JCA, which has just been delivered.
I agree with his reasoning and conclusion that the appeal is unmeritorious and deserves to be dismissed. Therefore, having also read the Records of Appeal and the briefs of argument filed and exchanged by the parties, I equally join in dismissing the appeal.
Accordingly, the appeal fails and the decision of the lower Court is hereby affirmed. I abide by the order as to costs made in the leading judgment.
Appearances:
Appellant was served hearing notice on 05-03-18, but was unrepresented.For Appellant(s)
Mr. J. K. Aworinde, with him, Mr. E. AjadiFor Respondent(s)
